Emily Kategere vs Kibwera Village Council and Others (Land Case No. 28724 of 2024) [2025] TZHC 8468 (19 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB - REGISTRY) AT BUKOBA LAND CASE NO. 28724 OF 2024 EMILY KATEGERE ...................................................... PLAINTIFF VERSUS KIBWERA VILLAGE COUNCIL................................ 1 st DEFENDANT THE ATTORNEY GENERAL ..................................... 2 n d DEFENDANT d is t r ic t EXECUTIVE OFFICER............................3 r d d e f e n d a n t KARAGWE DISTRICT COUNCIL..............................4 th DEFENDANT SUNDAY RWAZO .................................................. 5 th DEFENDANT JONAS CLEOPHAS.................................................6 th DEFENDANT ELIAS CLEOPHAS .................................................. 7™ DEFENDANT FELIX CLEOPHAS.................................................. 8 th DEFENDANT JUDGMENT 28T hNovember & 19th December, 2025 POMO, J In the instant suit, the dispute between the plaintiff, EMILY KATEGERE, and the 1s t; 5th ; 6th ; 7th and 8th ; save for 2n d and 3r d defendants who are joined as necessary parties by operation of the law, is over the land described to be located at Mabira hamlet, Kibwera village, Kihanga Ward within i Karagwe district with the following borders: Leonard Kipupu in the North, in the southern part it is bordered by Kazimily Francis, in the Eastern part it is bordering Joseph Batale and in the western side it is bordering Kibwere to Kihanga road. Its size is approximately 17 acres having estimated value of TZS 15,000,000/- (Hereinafter referred "The suit land") According to the plaintiff's pleaded facts in his plaint is that, the suit land belonged to his father one Kategere Kwezi who purchased the same in 1995 from two different persons who are brothers, namely; Emily Magambo and Henerico Magambo. His father used the suit land uninterruptedly up to the year 2001 when, by way of gift inter vivo, the plaintiff acquired the suit land from him. Since then, the plaintiff went on using suit land until in 2018 when it was unjustifiably encroached by the above-named defendants who asserted to own that land. The plaintiff averred the 5th ; 6th ; 7th ; and 8th claimed to derive their ownership of the suit land through being allocated the same by the 1s t defendant, Kibwera village council. He therefore sued them for orders that; be declared the lawful owner of the suit land; the first defendant be declared to have no any colour of right and ownership over the suit land; the defendants be ordered to pay him general damage and costs of the suit. 2 On the other hand, the 1st; 2n d ;3rd and 4th defendants, in their joint Written Statement of Defence (the WSD) pleaded that the suit land belongs to the 1s t defendant's reserved land used for development which has never been owned by the plaintiff. Further averred that the seller from whom the plaintiff is said to have bought the suit land had never owned that land. Therefore, are seeking for the dismissal of the suit. For the 6th ; 7th and 8th defendants who preferred a joint WSD, in their defence averred that they acquired the suit land through purchase on 17th day of June, 2015 at the price of T7S 3,500,00/- from the children of the late Joseph Batale namely; Theodozia Joseph; Prasdia Joseph; Joicy Joseph; Jenimery Joseph; Pundesiana Joseph and Koku Joseph. That, have committed improvement to the suit land and have been in use and occupation of it uninterruptedly for hardly ten years now. On the side of the 5th defendant; assert that the suit land was before owned through purchase for value by the late Leverian Rwazo the founder of KADAFA the owner Farm No. 607 under the title deed. On 7th day of November, 2025, this court framed three issues for determination; namely; one, whether the plaintiff is the lawful owner of the suit land; two, whether the defendants are the trespassers to the suit land; three; whether there is established boundaries of the suit land; and lastly, to what reliefs are parties entitled In proving his case, four witnesses testified for the plaintiff, to wit; the plaintiff, Emily Kategere (PW1); Emily Luhumbya (PW2); Leanidasi Bagumila (PW3); Leopord Leonard Kifufu (PW4). Also, tendered sale agreement dated 9/06/1995 (Exh. PEI) For the 1s t to 4th defendants, two witnesses were called to testify; namely; Sylvery Kabiriti (DW1); Rugemarira Thabit (DW2). Also, tendered documentary exhibit, the minutes dated 05/02/2019 of the village council (Exh.DEI) As for the 5th defendant, two witnesses testified, who are; Sunday Rwazo the 5th defendant (DW3) and Emily Fredrick (DW4). The 5th defendant also tendered documentary evidence, a title deed known as Farm No.607 at Kibwera village (Exh.DE2); sale agreement dated 25/3/1991 (Exh.DE3) and Receipt dated 10/06/1986 (Exh. DE4) The 6th defendant, Jonas Cleophas, testified as (DW5) without calling any other witnesses so was to the 7th defendant, Elias Cleophas; who testified as (DW6). DW5 tendered documentary evidence, a sale agreement dated 17/06/2015 (Exh.DE5) Lastly, was the 8th defendant, Felix Cleophas, who testified as (DW7) and called one witness, Cresencia Joseph (DW8) I am not going to reproduce here each witness's evidence as testified, instead their respective testified evidence as well the tendered exhibits will be considered by this court in due course of determining the issues framed. Beginning with the 1s t issue: whether the plaintiff is the lawful owner of the suit land. The plaintiff's evidence testified by him as PW1 is that, the herein 5th to 8th defendants trespassed his land, the suit land. He went on naming them thus; 5th defendant is Sunday Rwazo; 6th is Jonas Cleophas, 7th is Elias Cleophas and the 8th is Felix Cleophas. Again, PW1 described the suit land to be located at Mabira hamlet in Kibwera village of Karagwe district. On how he acquired it, PW1 testified it was by way of being given it by his father, Kategere Kwezi, in 2001 right after contracting his marriage with his wife. Moreover, PW1 testified that his father acquired the suit land in 1995 through purchase for value from Emily Magambo (PW2) and Eneriko Magambo. To substantiate his testimonies, PW1 tendered a sale agreement (Exh. PEI). Finally, PW1 testified that the invaded suit land is estimated to be 17 acres. 5 Cross examined by Ms. Mwenda, learned state attorney for the 1s t - 4th defendants, PW1 admitted the sale agreement doesn't indicate the number of acres. Also, admitted that the sale agreement doesn't indicate the boundaries of the suit land. Cross examined by Mr. Rwazo, learned advocate for the 5th defendant, the plaintiff admitted that the sale agreement (Exh. PEI) do not indicate the location of the suit land, neither does it indicate the boundaries. Also, admitted that he does not know the size of the suit land trespassed by the 5th defendant. Also, he admitted that the sale agreement dated 25/03/1991 between Fredrick Longino and Leverian Rwazo cames first compared to his sale agreement (exhibit PEI) which is of 1995. In corroborating his evidence, the plaintiff called Emily Magambo (PW2) who testified that is the one who on 9/06/1995 sold the land to the plaintiff's father, the land he estimated to be of 24 acres. He asserted that he was paid four cows as a purchase price. He described the land he sold as a farm with demarcated sisals trees surrounding the farm, also there were main road from Kibwera village to kihanga and his father's graves are there and the same is at Mabira hamlet in Kibwera village. 6 When cross examined by Mr. Lutambi, learned State attorney for the 1 s t - 4 th defendant, PW2 stated the sale was through written sale agreement and signed it. He admitted not knowing on how the land was acquired by his father. PW3, testified for the plaintiff as a person who was told by the PW1 late father that he owned the suit land having bought it from PW2. That, the land belongs to the plaintiff. He testified for not knowing size of the land On the other hand, the 5th defendant testified the land not to belong to the plaintiff and supported what he testified by tendering a title deed, Farm No. 607 (exh.DE2) and the sale agreement dated 25/03/1991 (exh.DE3). The 6th to 8th defendants, tendered a sale agreement (DE5) and called the mother of the children who sold the land to them. She testified on how they owned the suit land with her late father the land which in turn was granted to those children who sold the same to the said defendants. From the above evidence as adduced, it is evident that nowhere the plaintiff ever testified the 1s t defendant to have invaded his land, rather asserted the 5th to 8th defendants as the invaders. Therefore, if anything, the dispute remains on who are the lawful owners of the suit land involving the 5th to 8th defendants 7 A sale agreement dated 9/06/1995 (Exh.PEl) is a land purchase agreement from which the plaintiff's father derived ownership of the land said he later gifted inter vivo to the plaintiff. As it is, this agreement does not show the size of the land, its boundaries or its location. Being a written agreement, the law is clear, no oral evidence is allowed to fill the gap. See: Agatha Mshote versus Edson Emmanuel & 10 Others, Civil Appeal No. 121 OF 2019 CAT at DAR ES SALAAM and Joseph F. Mbwiliza versus Kobwa Mohamed Lyeselo Msukuma and Another, Civil Appeal No. 227 of 2019 CAT at Tabora (both unreported). In Agatha Mshote versus Edson Emmanuel & 10 Others, case, at pages 25-26, the Court of Appeal had this to state: - "Since the disposition was reduced into writing it could not be overridden by an oral account. This is per the dictates o f section 100(1) o f the Evidence Act which stipulates as follows: (1) When the terms o f a contract, grant, or any other disposition o f property, have been reduced to the form o f a document, and in all cases in which any matter is required by law to be reduced to the form o f a document, no evidence shall be given in proofof the terms o fsuch contract, grant, or other disposition of property, or of such matter except the document itself or secondary evidence o f its contents in cases 8 'ft in which secondary evidence is admissible under the provisions o f this Act We thus agree with the respondent's counsel that since the sate agreements expressly show that, PW2 and PW3 had purchased land in their own capacities and not on behalf o f the appellant, the oralaccount by PW1, PW2, and PW3 is not compatible with the contents o f the documented sale agreements which cannot be superseded bv the ora! account" And, in In Joseph F. Mbwiliza versus Kobwa Mohamed Lyeselo Msukuma and Another, case, the court of appeal observed: - "...once parties to a contract reduce their agreement into writing, the written agreement prevails in terms o f section 101 o f the Tanzania Evidence Act, Cap. 6 R.E.2019 (the Evidence Act). This principle was restated by the Court in the case o f Lufu Victor Kayombo (supra) stating that: documentary evidence reflected repositories and memorial o f truth as agreed between the parties and retain the sanctity o f their understanding." Guided with the above legal position therefore, the oral account cannot salvage the plaintiff's case. In the event I find the plaintiff have failed to prove ownership of the suit land for lack of evidence. Instead, as is evident from the two exhibits, Exh. DE2 and Exh.DE5. the sale agreements possessed of the 5th to 8th defendants, the same prove ownership of their respective land. That said, I resolve Issue No.l in the negative. 9 Having so decide, the 2n d issue die naturally as the defendant are not trespassers. Further, since the titled under which the defendants own their respective land indicate the boundaries of their respective land, issue No.3 is affirmatively answered. The last issue is on reliefs. The plaintiff having failed to prove ownership, the only relief to the suit is to have it dismissed. Therefore, the suit is hereby dismissed. Considering the circumstances of the case, I make no order as to costs. It is so ordered. Right of Appeal explained. DATED at BUKOBA on this 19th day of DECEMBER, 2025. Judgment delivered in chamber on this 19th day of December, 2025 in presence of plaintiff unrepresented; Ms. Magreth Richard Mwendai, learned State attorney for the 1s t - 4thdefendants. Also, in presence of the 5th to 8th defendants unrepresented. Right of Appeal explained MUSA. K. POMO JUDGE 19/12/2025 * i * • MUSA k : POMO JUDGE 19/12/2025